My Lords, the arguments for this amendment have been well rehearsed at earlier stages and I shall not weary the House by repeating them at length. We have what appears to many, including me, a giant lacuna in the Bill. In the Green Paper Every Child Matters refugee children are specifically mentioned as being children in the greatest need, yet the agencies which are charged with looking after them are excluded from the duty in Clause 8 to safeguard and promote children's welfare. I have read what the Minister said about the amendment on Report. I still find the omission incomprehensible. Why on earth should refugee children be denied the same rights and protection as other children in the UK? The Minister argued that,
"a duty to have regard to the need to safeguard and promote the welfare of children could severely compromise our ability to maintain an effective asylum system and strong immigration control".—[Hansard, 17/6/04; col. 996.]
She went on to argue that in undertaking its primary functions it would be unavoidable that the IND would do things that would be judged as inconsistent with a duty to safeguard and promote welfare.
We need to unpack this a bit. The first point is that Clause 8 is not an absolute duty, but simply requires agencies to make arrangements to have regard to the need to safeguard children and promote their welfare in the discharge of their functions.
As the Minister said on Report,
"We have been very careful in the way in which we have worded this clause: we do not put a duty on agencies that would make them unable to fulfil their primary functions".—[Hansard, 17/6/04; col. 995.]
Nobody would argue that the primary function of the Immigration Service is not to ensure effective immigration control, just as nobody would dispute that the primary function of the police is to ensure public order and prevent crime. Yet the chief officer of police is included in the new duty in Clause 8(l)(g).
We might do well to look at the Explanatory Notes to the Bill which state:
"This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of exercising their normal functions".
The Government have failed to explain how this duty would interfere with the normal functions of the agencies listed in the amendment.
It is important to look at the wording of the amendment because it does not ask that the whole of the IND service be included in the duty, only the relevant bodies and personnel who come into contact directly with children at key points in the system.
Perhaps I may say a few words about detention. On Report the Minister restated the concerns of the Immigration Service that the amendment,
"would provide another basis for exploiting the appellate and judicial review systems by arguing that the detention of asylum-seeking families with children is not compatible with safeguarding children or promoting their welfare".—[Hansard, 20/5/04; col. 977.]
It is a little hard to reconcile the Minister's position with the recent assertion by her noble friend Lord Bassam in debates on the Asylum and Immigration (Treatment of Claimants Etc.) Bill. When resisting an amendment to ensure that assessments of children's needs while in detention are undertaken the noble Lord argued:
"I hope that noble Lords are reassured that the current provision for the care and welfare of children detained in immigration removal centres is of a very high standard. We will never be complacent about the issue, and we will ensure that we are aware of the need to maintain—and, where necessary, improve—the standard of care for children".—[Hansard, 18/5/04; col. 748.]
Despite the noble Lord's assertions, we still have reports by Her Majesty's Inspectorate of Prisons on inspections of five immigration removal centres in 2002. Those reports have been mentioned at earlier stages of the Bill. They highlight the inappropriateness of detaining children and concerns about their treatment.
Similar concerns about the treatment of children in Prison Service establishments has led to their inclusion under the new duty in Clause 8, so we have to ask why a different approach is being taken here. We need to remember that detention is without limit of time. In fact it can be for prolonged periods. Recent figures given by the noble Lord, Lord Bassam, in debates indicate that between March and April 2004, 323 people were taken into detention, 63 of whom were held for more than a week. The Refugee Children's Consortium considers the measures for ministerial authorisation referenced by the Minister on Report to be woefully inadequate. One particular case illustrates that: the Konan case. Miss Konan, who fled the Ivory Coast, was detained for more than six months with her young child. The period of detention was subsequently ruled to be unlawful for all but the initial two-week period, despite repeated authorisation by the Minister.
If the Minister considers it appropriate to detain children and that the care for children in detention is of a high quality, will she explain why those directly responsible for the care of children should not fall under the duty in the Bill? I beg to move.